SH 2578 PTY LTD v Wingecarribee Shire Council

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: NSW Rural Fire Service, Planning for Bushfire Protection 2019, November 2019
State of New South Wales (Department of Planning, Housing and Infrastructure), Development Near Rail Corridors and Busy Roads – Interim Guideline, December 2008

Category: Principal judgment

Parties: SH 2578 Pty Ltd (Applicant)
Wingecarribee Shire Council (Respondent)

Representation: Counsel:
M Seymour SC (Applicant)
L Sims (Respondent)
Solicitors:
McKee Legal Solutions (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2024/338769

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal by Wingecarribee Local Planning Panel (Panel) of Development Application No 24/1487 (DA) for land subdivision and associated site works. The site is known as 159 Railway Avenue, Bundanoon, and is legally described as Lot 2 DP 304969 (site). There are two dwellings occupying the site at present.

2. Wingecarribee Shire Council (Council) is the respondent in the proceedings under s 8.15(4) of the EPA Act.

3. After a request from the parties, the Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act), which was held on 25 September 2025. I presided over the conciliation conference. Prior to the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

4. In relation to the agreement between the parties, I note that the application before the court sought Torrens title subdivision of the site into 39 lots, comprising 37 residential lots, plus two lots to contain associated infrastructure and for specified vegetation management (Council’s Amended Statement of Facts and Contentions filed 10 September 2025 p1). This would occur over four subdivision stages. With their agreement, the parties propose that the DA be approved in part, mindful of s 4.16(3) of the EPA Act. The agreed position is that the grant of consent occur with respect to Stage One only. Stage One would subdivide the site into three lots. The individual dwellings would each sit on a separate lot, while the third lot would constitute the residue. The description of the development adopted by the parties as per their agreed conditions of consent is as follows (Annexure A to this judgement p 1):

Stage 1 of the proposed development being Torrens title subdivision of one lot into three lots including two residential lots containing an existing dwelling on each lot and one residue lot (identified as Lot 103), demolition of an existing slab on Lot 101, upgrades to the existing dwellings for bushfire protection purposes addressing ember attack, sewerage works, and removal of decommissioned underground fuel tank and associated remediation.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant consent for Stage One of the proposal in accordance with the parties' agreement (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [62]-[65]). Ultimately, I find there are none. There are preconditions to the exercise of this power, which I attend to below. Here I note an agreed jurisdictional statement (JS), provided by the parties to the Court on 25 September 2025, which is intended to assist me in coming to my findings in relation to jurisdictional power.

Jurisdiction

Partial consent

6. The parties agree that there is power to grant consent to a specified part of the DA. I accept this advice having regard to the provisions of s 4.16(4)(c) of the EPA Act, reproduced in context below:

4.16 Determination

(1) General A consent authority is to determine a development application by—

(a) granting consent to the application, either unconditionally or subject to conditions, or

(b) refusing consent to the application.

…

(4) Total or partial consent A development consent may be granted—

(a) for the development for which the consent is sought, or

(b) for that development, except for a specified part or aspect of that development, or

(c) for a specified part or aspect of that development.

(5) The consent authority is not required to refuse consent to any specified part or aspect of development for which development consent is not initially granted under subsection (4), but development consent may subsequently be granted for that part or aspect of the development.

Integrated development

7. The proposed development constitutes integrated development under s 4.46 of the EPA Act as, in order for it to be carried out, it requires development consent and a bushfire safety authority under s 100B of the Rural Fires Act 1997 (NSW).

8. The parties advise that the DA was referred to the Rural Fire Service (RFS) on 26 July 2025. I note that the RFS has not issued General Terms of Approval (GTAs). Notwithstanding that the RFS has not issued GTAs, consent may be granted pursuant to s 4.47(5) all the EPA Act. While it does not relate to the question of power, which is the centre of my attention here mindful of s 34(3) of the LEC Act, the parties advise of the preparation of a bushfire assessment report and its recommendations. Works are proposed to upgrade the existing dwellings, as a component of this partial consent, to ensure that they are compliant with the provisions of Planning for Bushfire Protection 2019. That work is confirmed in proposed condition 58 (see Annexure A to the judgement).

State Environmental Planning Policy (Biodiversity and Conservation) 2021

9. Chapter 6: Water Catchments is a consideration in this proposal. Within Ch 6, both Pt 6.2, relating to development in regulated catchments, and Pt 6.5, relating to Sydney drinking water catchment, apply.

10. In relation to Pt 6.5, under s 6.61(1), development consent must not be granted unless the consent authority is satisfied the carrying out of the development would have a neutral or beneficial effect on water quality. The parties have taken me to the Stormwater Management Report prepared by Colliers dated 12 August 2025. In particular p 23 includes a table of data indicating development will have a neutral or beneficial effect on water quality. I am satisfied in relation to s 6.61(1). I further accept the parties’ advice that, pursuant to s 6.63 that the proposed development is consistent with NorBE Guideline. While concurrence has not been given with respect to s 6.64, mindful of s 39(6) of the LEC Act, this does not impede the Court from granting consent in accordance with the parties’ agreed position.

11. In relation to Pt 6.2, certain other findings of satisfaction are required. The parties’ JS works through the various questions with respect to: s 6.6(2) in relation to water quality and quantity, s 6.7(2) in relation to aquatic ecology, s 6.8(2) in relation to flooding and s 6.9(2) in relation to recreation and public access. Relevantly, the parties referred to various technical reports to support their agreed position on points of satisfaction. The parties also note (JS par 23):

Promotion of the retirement of the existing on site sewer and creation of new services links to the Council’s systems (see conditions 11, 33, 64) provides another better outcome for the prevention of any potential release of pollutants from the land the subject of the consent which can also be taken into account for the purposes of the provisions of Chapter 6 of the Biodiversity SEPP and/or clause 7.5 of the WLEP.

12. On the basis of the advice of the parties, I am satisfied with respect to each of the relevant matters.

State Environmental Planning Policy (Resilience and Hazards) 2021

13. Relevant matters concerning the issue of contamination and s 4.6 are addressed according to the parties, with the application supported by:

14. Report on Preliminary Site Investigation with Limited Sampling prepared by Douglas Partners, dated 24 April 2024;

15. Detailed Site Investigations prepared by Geotechnical Consultants Australia dated 16 September 2025; and

16. Remedial Action Plan prepared by Geotechnical Consultants Australia dated 19 March 2025 (RAP).

17. The parties agree that the site can be made suitable for the proposed development of Stage 1 of the subdivision. Decommissioning and removal of an Underground Storage Tank (UST) near the existing dwellings will be managed with the implementation of the RAP. The parties refer me to a number of proposed conditions to this effect. I am satisfied that the relevant requirements have been met in regard to s 4.6.

State Environmental Planning Policy (Transport and Infrastructure) 2021

15. I have given consideration to s 2.100 which relates to impact of rail noise, given the site’s location near a rail line. The parties draw my attention to the guideline document: Development Near Rail Corridors and Busy Roads – Interim Guideline. This guideline indicates that no specialist acoustic assessment is required for “dwellings between 40m and 80m of a rail track” (JS par 31). The parties indicate the existing dwellings included on the lots for Stage One would not require specialist acoustic assessment under the guideline given their substantial distance from the rail track. The parties also note these comprise existing residential accommodation. On the basis of the material provided by the parties, I do not consider the proposal now before me is likely to be adversely affected by rail noise or vibration.

16. The parties advise that Railway Avenue is a classified road. The following provisions apply under s 2.119(2):

The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that—

(a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

17. I note that the two existing dwellings currently access Railway Avenue via a long entry driveway. No change is proposed or will occur as a result of approval of Stage One of the Application. I accept the advice of the parties and am satisfied that:

18. In relation to s 2.119(2)(a), it is not practicable to provide access other than via the classified road as there are no alternative road connections available.

19. In relation to s 2.119(2)(b), the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development because it will not change the current vehicular access to the land nor the nature, volume or frequency of vehicles using the classified road to gain access to the land.

20. In relation to s 2.119(2)(c), the proposed development is appropriately designed to ameliorate potential traffic noise or omissions given the subdivision of lots for two existing dwellings are set back from the classified road.

Wingecarribee Local Environmental Plan 2010

18. It is clear that development for the purposes of subdivision of the Site is permissible with consent under cl 2.6. Development for the purposes of use of the existing structures, as dwellings, is also permissible development, with consent, in the C4 Environmental Living zone and R2 Low Density Residential zone which each apply to the Site. Development for the purposes of demolition is also permissible, with consent, under cl 2.7.

19. I accept that no development standards are contravened with the proposal before me.

20. In accordance with cl 5.16, the parties indicate that consideration has been given to relevant matters regarding minimising potential land use conflict.

21. Clause 5.21 relates to flood planning. The parties have taken me to the various points requiring findings of satisfaction and referencing the technical documentation accompanying the DA in support of these findings (in particular the Flood Impact and Risk Assessment Report prepared by Colliers and dated 10 February 2025) and the obvious considerations relating to the fact that the proposed subdividing off of the existing dwellings would change little. On the basis of the advice of the parties, I am satisfied with respect to each of the matters at cl 5.21(2).

22. Clause 7.5 applies as the site is identified on the Natural Resources Sensitivity Map, given its various riparian zones. I note the range of points of considerations raised in cl 7.5(3) and the requirements for findings of satisfaction with respect to cl 7.5(4). The parties have taken me to the earlier considerations with respect to State Environmental Planning Policy (Biodiversity and Conservation) 2021 and the technical material accompanying the application to enable positive findings of satisfaction (see [10]-[11]). I am satisfied with respect to cl 7.5(4).

23. Under cl 7.10, the Court must be satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when it is required. On the parties’ advice, I am satisfied with respect to this requirement.

Other considerations

24. I have given consideration generally to matters at s 4.15(1) of the EPA Act. In particular, in regard to s 4.15(1)(d), I note the advice of the parties that the DA was notified in accordance with requirements and that consideration has been given to objecting submissions.

25. Briefly, in terms of background, this matter initially came before me as a contested hearing. On 23 September 2025, and in the usual manner, the proceedings commenced on site. Prior to undertaking the site inspection, I had the opportunity to hear a number of objecting submissions, directly. Given the parties’ agreement on the limitations of the proposed approval now sought, many of the objecting submissions would seem to fall away in any event. The parties pointed me to Condition 18 relating to heritage conservation which would still have some pertinence to objecting submissions.

Conclusion

26. With the above findings, I am satisfied that the jurisdictional prerequisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

27. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notation

28. The Court notes that Wingecarribee Shire Council, as the relevant consent authority, has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), to the applicant amending the development application with the plans listed below:

| Reference/ DWG No | Title/Description | Revision | Prepared by | Date | | Proposed Subdivision of Lot 2 in DP304969 | | 484-21 GIS L13 [03] | Stage 1 Subdivision | 03 | Colliers | 19/09/2025 |

| Plan/ Document title and Reference | Date | | Remedial Action Plan E2535-1 | 19 March 2025 | | Detailed Site Investigation (E255-1-Rev A) | 16 September 2025 |

Orders

29. The Court orders that:

30. The Appeal is upheld.

31. Development Application No. DA24/1487 for subdivision of Lot 2 in DP304969, being 159 Railway Avenue, Bundanoon, is granted in part:

(a) Being Stage 1:

(i) the subdivision of Lot 2 in DP304969 into three (3) lots, being:

(a) two residential lots (Lots 101 and 102) each containing an existing dwelling; and (b) one residue lot (Lot 103), and

(ii) upgrades to the existing dwellings for bushfire protection purposes addressing ember attack; and (iii) demolition of an existing concrete pad on lot 101. (iv) removal of decommissioned underground fuel tank and associated remediation. (v) subject to the conditions set out in Annexure ‘A’ to this agreement; and

(b) is otherwise refused as to all other parts.

P Walsh

Commissioner of the Court

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Annexure A (543 KB, pdf)

Amendments

02 October 2025

Amended to include Annexure A as PDF at bottom of judgment.